State v Gaupe [2018] PGDC 35; DC3092 (30 October 2018)

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CRIMINAL LAW- Committal court – Court of Inquiry- consider sufficiency of evidence to committal to national Court.- Not court of competent jurisdiction to determine guilt- Decision to discharge defendant for insufficiency of evidence does not constitute decision to acquittal – no jurisdiction.- Aultrafois Acquit not available- Committal order Discharge and Struck out information.

PRACTISE & PROCEDURE –Committal discharge for insufficient evidence then Public Prosecutor in the exercise of his discretion file Ex-Officio Indictment under Section 526 Criminal Code Act.

Nugints, The State v [1994] PGLawRp 493 (21 April 1994) PNG Law Reports 1994Injia AJ
Application by Herman Joseph Leahy [2010] PGSC 26; SC1018 (29 March 2010)
Simili Kara v The State[1984] PNGLR 254).
BackeyYarume v Sylvester Euga (1996) N1476,
Review Pursuant to Constitution Section 155(2) (b)Application by Herman Joseph Leahy
(2006) SC855

1. SAGU PM: William Gaupe(the Defendant) appeared before me in this committal court proceedings having been charged with three (3) counts of Obtaining monies by False Pretence under Section 404(1)(a) of the Criminal Code Act (CCA). The defendant applied to this court to discharge him from all three charges on the basis of double jeopardy under Section 37(8) of the Constitution. . He asserts double jeopardy and autrefois acquit.

2. The Defendantis charged with the following three counts of Obtaining Monies from one Carol Paweby False Pretence on three (3) separate occasions in different amounts thereby contravening Section 404(1)(a) of the Criminal Code Act. Details of the charges as follows:-

	CR. No.	Information Laid on date	Date of offence	Place of offence	K Amount obtained	Alleged Breach Sect.	Police Informant
1	686/14	8/10/2014	11/4/2010	Paiam	K30,000	404(1)(a) CCA	Henry Sagu
2	687/14	8/10/2014	5/6/2012	Paiam	K20,000	404(1)(a) CCA	Henry Sagu
3	688/14	8/10/2014	12/6/2012	Paiam	K20,000	404(1)(a) CCA	Henry Sagu

3. The Defendant was a unsuccessful candidate in the 2012 National Elections who stood for the Lagaip /Porgera Open Electoral in the Enga Province.

4. He borrowed monies from Carol Pawe on three separate occasions in different amounts ie. K30,000, K20,000 and K20,000 as indicated above to support his election campaign. The Defendant promised to repay the borrowed amount with interests and signed Statutory Declarations to that effect. The Defendant did not win his election in 2012. Carol Pawe was his 4^th wife but they were living separately at the time of the incident. The Defendant failed to repay her monies.

5. On 1^st March 2013 Carol Pawe laid complaint against the defendant and had him Charged with six charges altogether, these being three counts of Obtaining Monies by False Pretence under Section 404(1)(a) CCA and three counts of Making False Declarations and Statements under Section 197(1) CCA on the same factual circumstance making a total of six charges.

.6 On the 2/10/2013 The Committal Court in Wabag after considering all the evidence decided there was insufficient evidence to commit the defendant to stand trial in the National Court and Discharged the Defendant from all six (6) charges above.The Magistrates File note reads:-

“Having perused each respective file, I find that there is no sufficient evidence in respect of the six(6) counts against the accused that is three(3) charges under 404(1)(a) and three (3) charges under Section 197(1) Criminal Code Act.”

The Complainant is at liberty to re institute civil proceeding against the accused.”

8. The Police on 8^th October 2014 laid the same three charges against the Defendant for obtaining monies from Carol Pawe by False Pretence under Section 404(1)(a) CCA. However, this time by a different Police Officer laying the charges at different times and bearing different CR. Numbers but the charges were the same on the same factual circumstances.

9. Whether the defence of autrefois acquitor double jeopardy under section 37(8) Constitution is available in the Committal Court Process?

(ii) Since they are dismissed; the second proceedings be deemed as Autrefois Acquit or double jeopardy; and

11. The defendant had filed a submission prepared by a lawyer from the Public Solicitor but did not appear in court to present it. He sent his apologies through the defendant and the defendant said he will rely on his affidavit and the prepared submission on file.

12. Every person has a constitutional right not to be tried for the same offence twice. under Section 37(8) of the Constitution which reads-

“No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.”

13. The above constitutional right is further reinforced by Section 560(2)(e) CCA When the accused is called upon to plea he may plea that he has already either been convicted or acquitted of an offence under such circumstances he cannot be tried again for it again.

14. The above provision is reinforced under sections 17 and 560(2)(a),(e) of the Criminal Code Act where the Defendant may plead double jeopardy and the District Court to issue a Certificate of Dismissal under Section 162(2) District Courts Act.

15. Protection accorded under Section 37(8) Constitution is only available to the defendant who has been tried by a competent court and has been acquitted and he therefore cannot be tried again for the same offence Towice. The National Court illustrates this point in the case of Nugints, The State v [1994] PGLawRp 493 (21 April 1994) PNG Law Reports 1994Injia AJ (as he then was). In this case the accused was charged and acquitted in the District Court on an unlawful assault charge. The State subsequently presented an indictment charging him with doing grievous bodily harm to the same victim, contrary to s 319 of the Criminal Code. On arraignment, the facts presented were the same as those presented in the unlawful assault charge. The court held the defence of autrefois acquit I was available to him. However, this case before me is in the committal court process discussed further below.

16. So when does the trial begin and when does the trial end. A trial commences when the accused is called upon to plea or to say whether he is guilty or not guilty of the charge as held in case of Application by Herman Joseph Leahy [2010] PGSC 26; SC1018 (29 March 2010)which applied the principle inSimili Kara v The State[1984] PNGLR 254). The defendant must further show that he was either convicted or acquitted.

17. However, In this case the Defendant was discharged by Committal Court in Wabag which found insufficient evidence on the charges against him to commit him to stand trial in the National Court. The function of the Committal process is non-conclusive and not a court of finality where Section 37(8) can be involved.

18. The committal proceedings are as provided for Under Part VI of the District Courts Act, Section 93 – 103. The main function of the Committal Court is to consider all the evidence received as to whether there is sufficient evidence to each of the elements of the charge to commit the accused to stand trial in the National court. If however, the court considers there is insufficient evidence then to discharge the defendant as from the information in accordance with Section 95 District Courts Act which states:-

(1)Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”

19. A committal proceeding is a court of inquiry into the strength of the Police case on the evidence contained in the hand up brief tendered into court by the Police, and it is not an act of adjudication. The primary objective of a Committal Court is to determine whether there is sufficient evidence against the defendant to commit him to the National Court to stand trial Backey Yarume v Sylvester Euga (1996) N1476, unreported

20. The Committal Court does not determine whether or not the person accused is guilty of the offence charged. It does not conduct trial to find the guilt of the defendant. The proceedings are of an investigatory, tentative and non-conclusive nature. This is well settled law in many authorities but for now the Supreme Court in the case of a Review Pursuant to Constitution Section 155(2) (b)Application by Herman Joseph Leahy (2006) SC855 unreported Judgment the bench adopted the view by his honour Mogish J held in the National Court and I quote;

“That the role of a committal magistrate is not to decide whether to dismiss or acquit an accused person charged with an indictable offence or to determine the guilt or innocence of the accused. The magistrate's function under Part VI (proceedings in case of indictable offences) of the District Courts Act is to consider whether the evidence adduced is sufficient to put the accused on trial in the National Court. His Honour cited with approval the following dicta of the Full Court of the Supreme Court of New South Wales in Ex parte Cousens: Re Blackett [1946] NSWStRp 36; (1964) 47 SR (NSW) 145:

In substance a committing magistrate determines nothing except that in his opinion a prima facie case has been made out for committing the accused for trial. ...

In relation to charges of offences which they have no jurisdiction to try or dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence against him and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function”

21. The Committal Court is a court of enquiry facilitating an administrative process to determine whether there is sufficient evident to commit the Defendant to stand Trial in the National Court as seen in recent case National Court case Akia v Francis [2016] PGNC 335; N6555 by Gavera-Nanu J. In this

The committal proceedings are governed by Part VI of the District Courts Act,Division1. It is of fundamental importance to note here that a committal proceeding is not a trial or a substantive hearing where a guilty finding or an acquittal of a defendant charged with an indictable offence can be made, it is an administrative process in which an inquiry is made into an indictable offence(s) charged to see if the evidence against the defendant constituted a prima facie case or is sufficient: Bank of PNG v. Eddie Oruba Mai (2007) SC862. At the end of such an inquiry the Committal Court may either discharge the defendant for lack of evidence or for lack of a prima facie case or commit the defendant to either stand trial or sentence in the National Court.

22. The Committal process is not a trial or substantive court hearing where a plea can be taken and a finding of conviction or acquittal of a defendant charged with an indictable offence can be made. To do so will be a great error in law. It is a screening process of the evidence received to decide whether a prima facie case exist to commit the defendant to stand trial in the National Court or if the court finds insufficient evidence than the defendant is discharged and the information is struck out.

23. In the application before me, the Committal Court on the 2^nd day of October 2013 found insufficient evidence for the six charges against the defendant which included the three charges the subject of this application and discharged the defendant on all six charges.

24. The Prosecution does not adequately assist the court in why the defendant was recharged on the above three charges. One explanation was that the first order to discharge the defendant meant that the case was struck out and therefore they could recharge the defendant. Also there was a new C.I.D officer who laid the charges again on that understanding

25. The defendant submitted that the discharge order amounted to a dismissal of the charges. The committal court process is not definitive as nothing can be finally decided by the committal proceedings as seen above.

26. The Defendant submitted that the discharge orders amount to a dismissal of the charges. I find it difficult to follow this line of argument as the committal court can only discharge the accused from the information by Section 95(2) District Courts Act if there are insufficient evidence.There is nothing in the court order that shows the charges were dismissed the magistrate was correct in that recording as he has not conducted a trial.

27. Once the Committal Court found insufficient evidence on the Defendant’s charges and discharged him that is the end of the committal process. The Public Prosecutor maintains the right to reconsider the evidence and may decide to file an ex-officio indictment on the charges under Section 526 of the Criminal Code Act. This is the proper process.

28. The defendant’s submission on double jeopardy and autrefois acquit is ill conceived and misleading to the court.They do not arise here and cannot arise in the Committal process deliberation since it is not a competent court to conduct hearing and determine guilt of the defendant. The defendant did not stand trial and was not acquitted, therefore he cannot invoke the protection under section 37(8) of the Constitution. This provision is available to someone who has stood the criminal trial for example, he was arraigned, plea entered , trial conducted in collecting the evidence, court weighing the evidence and the court making a final deliberation on the guilt of the accused and found either guilty or acquitted and is being tried for the same offence again.

29. The order to discharge meant that there was insufficient evidence to commit the defendant to the National Court. It did not amount to a dismissal of the charge. That occurs after the conduct of a trial in the District Court. Once the defendant is discharged for insufficient evidence the information is deemed struck out. This leaves it open for the Public Prosecutor to reconsider the evidence if he chooses to.

30. In conclusion I find that the defendant is being charged again for the three offences that the committal court found insufficient evidence and had discharged him from on 2^nd October 2013. The Police cannot again recharge him for the same offence in the Committal Court. That process was already concluded.

31. However, This is an abuse of court process. The proper course open to the Public Prosecutor is to exercise his powers under Section 526 of CCA to reconsider the evidence and may file an ex-officio indictment in the National Court if he chooses.

32. For the above reasons the plea of autrefois acquitor double jeopardy is not available to the defendant in the committal process.

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Police Prosecution Unit : State
Defendant appeared in person.

Papua New Guinea District Court

State v Gaupe [2018] PGDC 35; DC3092 (30 October 2018)